Legal Education

As copyright concerns halt California's plan for Kaplan bar exam, non-NCBE options being explored

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The State Bar of California says it will continue to explore options outside of the National Conference of Board Examiners’ bar exam offerings after putting on a hold a plan to create a proprietary exam with Kaplan North America. (Image from Shutterstock)

The State Bar of California says it will continue to explore options outside of the National Conference of Board Examiners’ bar exam offerings after putting on a hold a plan to create a proprietary exam with Kaplan North America.

On May 14, the NCBE wrote Brian Carlidge, senior vice president of college, legal and graduate programs at Kaplan, protesting its proposed partnership with California’s state bar to create a proprietary multiple-choice exam that replicated the Multistate Bar Exam and could be conducted remotely and at test centers. A copy of the letter from NCBE corporate counsel Kenneth Kraus is posted as an attachment to the state bar examiners’ agenda for its June 21 meeting.

The NCBE provides the MBE. Although remote testing was briefly available during the early part of the COVID-19 pandemic, the paper-and-pencil test is now administered only in person. Since the MBE will be sunsetting in 2028, state bars must replace it. Many jurisdictions will use the NextGen bar exam, which was created by the NCBE and will be administered in person beginning in 2026. California has not committed to the new exam.

In the letter, Krause noted Kaplan has for years licensed copyrighted MBE material, including NCBE’s study aids that “include hundreds of actual, retired MBE questions,” and said the license agreement between Kaplan and NCBE states: “Absent prior written authorization from NCBE, Licensee may not (1) reprint or otherwise use or distribute any other NCBE materials in any way, or (2) … sub-license, assign, or otherwise transfer this agreement or any rights granted hereunder to any person or entity.”

The letter said NCBE wants “to make sure Kaplan will not use NCBE’s copyrighted MBE materials to create multiple-choice questions for California in violation of the license agreement and NCBE’s intellectual property rights, including its rights under the Copyright Act.”

California tests more bar candidates than every other state but New York. In July 2023, 7,555 examinees took the test and 3,944 took it in February 2024, according to the NCBE.

Exclusively remote administration of the Kaplan test would save an estimated $4.2 million annually; holding it at vendor-owned test centers would save an estimated $2.8 million; and a hybrid administration would save an estimated $4 million, according to a May 16 state bar memo. The state bar’s admissions fund faces insolvency in 2026, with its 2024 budget forecasting a $3.8 million deficit and only $3.3 million in reserves at the end of the year, according to that memo.

Meanwhile, according to the state bar’s latest memo, dated June 21, the state bar is exploring other options, including contracting with the NCBE or another jurisdiction that develops its own bar exam for the February 2025 test, or developing its own multiple-choice questions effective for the July 2025 administration.

The idea of Kaplan producing a bank of multiple-choice questions for the February 2025 bar exam administration initially was floated at the state bar’s April board meeting. In May, a proposal was pulled a few hours before the board of trustees was to review it.

Leah Wilson Leah Wilson, executive director of the State Bar of California: “We remain optimistic about finding a collaborative solution.” (Photo courtesy of the State Bar of California).

“Kaplan requested its withdrawal in response to communications from the NCBE raising intellectual property concerns,” said Leah Wilson, executive director of the State Bar of California, in a statement. “We remain optimistic about finding a collaborative solution with the NCBE to resolve these issues for the benefit of future California bar exam applicants.”

Since the May meeting, the state bar has continued to work with Kaplan “to proactively identify and address any copyright or other obstacles to the planned partnership” and develop an exam for February 2025, according to the June 21 memo.

Russell Schaffer, communications director of Kaplan, said the test prep company doesn’t “have any information to share.”

In addition, Committee of Bar Examiners’ staff has contacted the NCBE to spell out “parameters of any potential copyright concerns it may have,” according to the June 21 memo.

“NCBE, like California, seeks a solution that will support California’s candidates for admission while maintaining a valid and reliable bar exam and respecting NCBE’s intellectual property rights,” Sophie Martin, NCBE director of communications, wrote in an email to the ABA Journal. Regarding the letter to the Kaplan, “we believe the letter speaks for itself and don’t have anything to add at this time.”

Several states are considering options to the NCBE-produced bar exam options. Nevada is considering a three-stage process for admissions to the bar and had “indicated a desire” to use the State Bar of California’s proposed Kaplan-developed multiple-choice test.

In November, Oregon approved apprenticeship as a method to licensure without taking the bar, and Washington followed but also included a skills coursework option. The council of the ABA Section of Legal Education and Admissions to the Bar in May passed a policy shift allowing states to use methods of licensure beyond the bar exam.

Updated at 4:32 p.m. CT to correctly state that California is the No. 2 jurisdiction in terms of the number of bar candidates.

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